Best Evidence Rule Chapter

Page 27

Evidence:

Best Evidence Rule

Colin Miller

CALI eLangdell® Press 2012

Notices

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About the Author

Professor Miller teaches Evidence, Criminal Procedure, Criminal Law, and Civil Procedure. He is the creator and Blog Editor of EvidenceProf Blog (http://lawprofessors.typepad.com/evidenceprof/), a member of the Law Professor Blogs Network. He is the Editor of Illinois Criminal Procedure and drafted a 100 page report comparing the Federal Rules of Evidence to Illinois evidentiary principles, which was used in the creation of the first Illinois Rules of Evidence.

Professor Miller received his B.A. degree with distinction from the University of Virginia and his J.D. (Order of the Coif) from the William & Mary Law School.

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Table of Contents

Notices ii

About the Author iv

About CALI eLangdell Press v

Table of Contents vi

Preface vii

Best Evidence Rule Chapter 1

Introductory Note 1

I. Historical Origins of the Best Evidence Rule 1

II. Article X: The Modern Best Evidence Rule 3

A. Rule 1002: The Rule’s Scope 3

B. Rule 1001: Defining the Relevant Terms 8

C. Rule 1003: The Duplicate Exception 13

D. Rule 1004: Excusing Nonproduction of Originals 16

E. Rule 1005: Public Records 22

F. Rule 1006: Summaries 24

G. Rule 1007: Admissions 26

H. Rule 1008: Functions of the Court and Jury 28

I. The Best Evidence Framework 30

J. Best Evidence Pleadings 31

Preface

The Best Evidence Rule, contained in Article X of the Federal Rules of Evidence (Rules 1001-1008) and state counterparts, is a Rule that requires a party seeking to prove the contents of a writing, recording, or photograph to produce the original (or a duplicate) or account for its nonproduction. Through a series of cases and hypotheticals drawn from actual cases, this chapter gives readers a roadmap for how to address any Best Evidence Rule issue in practice.

Best Evidence Rule Chapter

Introductory Note

In 2009, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts decided to “restyle” the Federal Rules of Evidence. The goal in this project was to make the Rules more user friendly rather than to enact substantive changes. At the end of each section of this chapter, there is a side-by-side comparison between the prior language of each Rule in Article X and the language of each new “restyled” Rule. Because the changes were intended to be stylistic only, everything discussed in this chapter should continue to be good law after the “restyled” Rules take effect on December 1, 2011.

I. Historical Origins of the Best Evidence Rule

Pre-Roman inhabitants of England, who were mostly illiterate, placed great importance on ceremony and “viewed written documents affecting property or contractual rights not as mere indicia of those rights, but as the rights themselves.” Cynthia A. DeSilva, California’s Best Evidence Rule Repeal: Toward a Greater Appreciation for Secondary Evidence, 30 McGeorge L. Rev. 646, 648 (1999). While this mindset, dubbed the “medieval mind” by John Henry Wigmore[1] eventually dissipated before disappearing entirely in the early 1800s, it permeated evidence law, setting the stage for both the doctrine of profert in curia[2] and the Best Evidence Rule. In courts of law, the ancient pleading doctrine of profert in curia required a party seeking relief based upon a written instrument to allege that he could produce the original. If a party could not produce the original document when its contents were at issue, he literally lost the rights it allegedly created.

Closely related to the doctrine of profert in curia is the Best Evidence Rule, also known as the Original Document Rule. Under the Best Evidence Rule, first enunciated in Ford v. Hopkins, (1700) 91 Eng. Rep. 250, 250-51 (K.B.), the proponent of evidence concerning the contents of a written document had to produce the original document or account for its nonproduction. See Solomon Salako, Chapter 13: The Hearsay Rule, Insite Law Magazine, http://www.insitelawmagazine.com/evidencech13.htm (last visited Jan. 13. 2012). If the proponent could neither produce the original document nor provide a satisfactory reason for its nonproduction, he could not prove the contents of the document through secondary evidence such as witness testimony or a handwritten copy. Courts applied this Best Evidence Rule with an understanding of the central position that the written word occupies in the law and the knowledge that “a slight variation of words may mean a great difference in rights.” Johnson v. Sourignamath, 816 A.2d 631 (2003). The requirement that the proponent of a document produce an original or account for its nonproduction was thus an effort to ensure that a party's substantive rights were not affected by the possibility of fraud or errors of human transcription and memory attendant in handwritten copies and testimony.

The twentieth century witnessed the invention of new technologies, such as the process of xerography[3], invented by attorney Chester Carlson[4] in 1937, which “revolutionize[d] the document reproduction industry” because originals could now be reproduced, ostensibly without the errors inherent in human transcription. SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1197 (2d Cir. 1981). In response to these new technologies, states began enacting exceptions to the Best Evidence Rule that allowed for the admission of “duplicates” or “duplicate originals” created without manual transcription even when proponents could not account for the nonproduction of originals. These changes paved the way for the eventual adoption of Article X, and specifically Rule 1003, of the Federal Rules of Evidence in 1975.

II. Article X: The Modern Best Evidence Rule

Article X of the Federal Rules of Evidence, consisting of Rules 1001-1008, contains the current Best Evidence Rule; most states have modified their Best Evidence Rules to conform to the Federal Rules.

A. Rule 1002: The Rule’s Scope

Federal Rule of Evidence 1002 contains the Best Evidence Rule: "An original writing, recording, or photograph is required in order to prove its contents unless these rules or a federal statute provides otherwise." An example of a writing triggering a Best Evidence Rule analysis can be found in United States v. Rivera-Carrizosa, 35 F.3d 573 (9th Cir. 1994), in which the defendant was convicted of unlawful reentry or presence in the United States after deportation. At trial, an agent testified that he reviewed the defendant’s birth certificate from his immigration file and that the certificate stated that the defendant was born in Mexico. Id. On the defendant’s appeal, the Ninth Circuit reversed his conviction because the prosecution did not produce his birth certificate at trial, meaning that the agent’s testimony violated the Best Evidence Rule. Id.

For an example of how the Best Evidence Rule applies to photographs, see United States v. Shores, 93 F. App’x. 868 (6th Cir. 2004), where the defendant was charged with being a felon in possession of a firearm and ammunition. Officers seized the firearm and ammunition during a search of the defendant’s residence, during which they saw, but did not seize, a photograph of the defendant with a holstered revolver that appeared identical to the revolver that they recovered from the defendant’s bedroom. See id. The officers testified regarding the photograph at trial, and the Sixth Circuit found that this testimony would have violated the Best Evidence Rule but for the fact that the defendant was placed on notice of the officers’ testimony and had the photograph in his possession during trial, triggering Federal Rule of Evidence 1004(3), which will be discussed infra. See id.

An example involving a recording can be found in Dyer v. State, 26 So. 3d 700 (Fla. Dist. Ct. App. 2010), in which a defendant was convicted of stealing videos from an adult video store. The prosecution’s main evidence against the defendant was the testimony of the store’s manager who reviewed the surveillance video from the night of the robbery. See id. at 701. Because the prosecution did not produce the surveillance video at trial or satisfactorily account for its nonproduction, the appellate court reversed the defendant’s conviction on appeal, concluding that the manager’s testimony violated the Best Evidence Rule. See id. at 703.

On the other hand, the Best Evidence Rule is inapplicable when a party seeks to admit evidence or testimony that relates to a writing, recording, or photograph, but does not seek to prove its contents. For example, in State v. Clark, 377 S.E.2d 54 (N.C. 1989), the defendant allegedly murdered his wife, and the trial court permitted a witness to testify that she discovered a life insurance policy on the wife’s life in the defendant's personal belongings although the prosecution did not produce the original policy. On the defendant's appeal, the Supreme Court of North Carolina affirmed the trial court's decision, concluding that the witness' testimony “was offered not to prove contents or terms, but simply to show defendant’s knowledge that the policy existed.” Id. at 60.

Furthermore, "[t]he best-evidence rule does not apply where a party seeks to prove a fact which has an existence independent of any writing, even though the fact might have been reduced to, or is evidenced by, a writing." JAG Consulting v. Eubanks, 72 S.W.3d 549, 555 (Ark. Ct. App. 2002). For instance, in Eubanks, an Arkansas appellate court found in a shop owner’s lawsuit for conversion of his tools and equipment that the trial court properly permitted his wife to testify about his lost income resulting from the conversion because she had personal knowledge of the lost income. The fact that the wife later used this knowledge to prepare his tax returns did not make her testimony inadmissible pursuant to the Best Evidence Rule even though the plaintiff did not produce the tax returns at trial. See id. at 242.

Finally, when evidence qualifies as a writing and as chattel[5], an item of tangible movable or immovable property, a court has discretion to treat it as chattel and beyond the scope of the Best Evidence Rule. Thus, in United States v. Yamin, 868 F.2d 130 (5th Cir. 1989), a prosecution for conspiracy and trafficking in counterfeit watches, the Fifth Circuit found no error with the admission of testimony by a witness that she purchased watches with counterfeit trademarks from the defendant even though the prosecution did not produce those watches at trial. See id. at 134-35. The Fifth Circuit found that the watches constituted both chattel and writings and that the dangers of inaccuracy and fraud that the Best Evidence Rule are designed to protect against were not implicated by the admission of the testimony because “[t]he viewing of a simple and recognized trademark is not likely to be inaccurately remembered.” Id. This was especially true because the prosecution did produce other counterfeit watches sold by the defendant and seized from the defendant’s store. See id. In United States v. Buchanan, 605 F.3d 518 (8th Cir. 2010), the Eighth Circuit reached the same conclusion with regard to testimony concerning an inscription in a safe. See also Colin Miller, “Safety in Numbers: Eight Circuit Finds Best Evidence Rule Not Triggered by Inscription on Safe.” EvidenceProf Blog, (May 6, 2010) http://lawprofessors.typepad.com/evidenceprof/2010/05/1002-chattel--us-v-buchanan----f3d------2010-wl-1753346ca8-iowa2010.html

Hypothetical 1

Chris Vagenos files an action pursuant to TheFair Debt Collection Practices Actagainst LDG Financial Services, LLC,alleging that the company engaged in deceptive practices in connection with the collection of a consumer debt. His claims are based upon a telephone message left on his cell phone by LDG. Vagenos claims, however, that the original message was destroyed when he switched his cellular telephone provider. If Vagenos wants to testify about the contents of the telephone message, does his testimony trigger a Best Evidence Rule analysis? Cf. Vagenos v. LDG Financial Services, LLC, 2009 WL 5219021 (E.D.N.Y. 2009); Colin Miller, “Adverse (Dis)Possession: Eastern District Of New York Order Adverse Inference Instruction In Best Evidence Ruling.” EvidenceProf Blog, (Jan. 17, 2010), http://lawprofessors.typepad.com/evidenceprof/2010/01/10041-adverse-inference-instructionvagenos-vldg-financial-services-llcslip-copy-2009-wl-5219021edny2009.html.